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Assistant Professor in International Law and International Criminal Law at Leiden University. Specialist in most general topics that allow for reinventing the world around a good bottle of wine (preferably Bordeaux...).
contact: dovjacobs@gmail.com

Tuesday, June 12, 2012

On the 30th
of May, the SCSL sentenced Charles Taylor
to 50 years in prison. The sentencing judgment raises a number of interesting
issues. some commentators, such as William Schabas, or on Opinio Juris, Marina Aksenova, have discussed
the length of the sentence, finding it either too long, or adequate, depending
on the preferred objectives of criminal justice (rehabilitation, retribution,
deterrence). Wherever one stands on this issue, I think that, despite it being common
practice in a number of international judgments, handing down a single sentence
for the entire array of crimes convicted, rather than having them
individualized does not help achieve the goals one ascribes to sentencing.
Indeed, how can there be deterrence, if there is no knowledge that a specific
crime for which a person is convicted carries a specific sentence? There is
also a problem of predictability, because we don’t know what the judges would
have decided if Taylor had for a reason or another been acquitted on one of the
counts. The only thing that can be taken out of the sentencing is that it is
condemnable to generally participate in the events, and the fact that a couple
of crimes more or less took place in the course of things becomes irrelevant.

Which brings me
to the main point I want to address here: the limits of criminal law in
addressing mass atrocities, both because of the question of gravity and
because of the collective dimension of the acts.

The question of gravity

I have often commented here on the difficult assessment of the criteria of
gravity in the ICC framework. In a nutshell, given the fact that the ICC, and
international tribunals in general, are competent to prosecute the gravest
crimes of interest to the international community as a whole, how does one
define an additional notion of gravity within this context? This is made even
more complicated because most people refuse to open the Pandora’s Box of a
hierarchy of crimes, which would be reflected in sentencing. But if all
international crimes are equally grave, then how do you justify given a higher
sentence for one of them rather than the other? It essentially boils down the
moral outrage of the individual judges. The Taylor sentencing judgment
illustrates this point.